SHARFUDDIN AHMED Vs. JAGADISH NATH RAY BAHADUR

JUDGEMENT

(1.) An occupancy holding belonged to one Abdul Kader, which he held under the opposite parties, who obtained a rent decree against him and in execution thereof in Rent Execution Case No. 226 of 1932 attached the holding on 2 March, 1932. While the attachment was subsisting the petitioner purchased the same from Abdul Kader by a registered conveyance dated 30 June 1932. In the conveyance the property was described as mukarrari mourashi holding and at the time of the registration the sum of Re. 1 only was deposited with the Sub- Registrar as the landlord's fee. The consideration recited in the conveyance is Rs. 849/-. Out of the consideration the purchaser undertook to discharge the rent decree and to discharge a mortgage on the holding. It is the case of the petitioner that no consideration passed as he did not accept the conveyance on finding that the property was under attachment at the time, but this part of the case has not been adjudicated upon as the learned Munsiff has held that he is not entitled to go into the said question. In rent Execution Case No. 226 of 1932 the holding was ultimately sold on 3 August 1932 and purchased by the petitioner. Thereafter the opposite parties made an application against the petitioner under Section 26-J, Ben. Ten. Act, for recovery of the transfer fee payable under Section 26-C, after deducting the sum of Re. 1 already paid, together with compensation. In the said application they also prayed for the determination of the nature of the tenancy under the provisions of Section 158, Sub-section (c), Ben. Ten. Act. The basis of their claim made under Section 26-J is that the holding is an occupancy holding, but has been falsely described as a mukarrari holding, in the aforesaid conveyance of 30 June 1932.

(2.) Although the question of status of the tenant has been gone into fully by the learned Munsiff, the order only gives the opposite party a decree for the recovery of Rs. 168-12-9, the balance of the landlord's transfer fee payable under Section 26-C and Re. 1 as compensation. In the order there is no declaration given that the tenancy is an occupancy holding. A preliminary objection is raised on behalf of the opposite parties that no revision lies as the said order is appealable, being an order passed not only on an application made under Section 26- J, but also under Section 158, an order under the last mentioned Section being appealable. I cannot give effect to this preliminary objection.

(3.) The relief under Section 158, Sub-section (C) must in substance be in the form of a declaration, and that under Section 26-J in the form of a decree for recovery of money. The petitioner not having appealed against the order, regarding it as in part an order under Section 158, Sub-section (C) cannot challenge the finding that the holding is an occupancy holding, but in my judgment he can attack the order for payment of Rs. 169-12-9 to the opposite parties in a manner which would not involve a challenge to the finding that the holding is an occupancy holding. In fact, the petitioner's advocate does not challenge the said finding. In my view the application filed by the opposite parties is a composite application, two applications combined into one, but different in scope though for their adjudication there is a common point involved, namely the status of the tenant. If a memorandum of appeal had in fact been lodged before the learned District Judge, theprayer for discharging the order for payment of Rs. 169-12-9 could not have been urged before him in the appeal. For that reason I hold that the application for revision which has only challenged the said order for payment of money based on Section 26-J is maintainable.